Professional Documents
Culture Documents
99 Unregulated Disaster
99 Unregulated Disaster
J. BRENT MARSHALL*
I. INTRODUCTION
183
184 JOURNAL OF LAND USE [Vol. 33:1
3. See Zahra Hirji, Removing CO2 From the Air Only Hope for Fixing
Climate Change, New Study Says, INSIDE CLIMATE NEWS (Oct. 6, 2016),
https://insideclimatenews.org/news/04102016/climate-change-removing-carbon-dioxide-air-
james-hansen-2-degrees-paris-climate-agreement-global-warming.
4. INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, Climate Change 2013:
The Physical Science Basis 467 (Thomas F. Stocker et al. eds., 2013),
http://www.climatechange2013.org/images/report/WG1AR5_ALL_FINAL.pdf [hereinafter
IPCC Climate Change 2013].
5. Id.; Climate Change: How Do We Know?, NASA GLOBAL CLIMATE CHANGE &
GLOBAL WARMING: VITAL SIGNS OF THE PLANET, https://climate.nasa.gov/evidence/ (last
updated Oct. 30, 2017).
6. IPCC CLIMATE CHANGE 2013, supra note 4, at 2.
7. See PATRICK MOORE, Climate of Fear, in CONFESSIONS OF A GREENSPACE
DROPOUT: THE MAKING OF A SENSIBLE ENVIRONMENTALIST (2014) 342, 348, available at
https://www.epw.senate.gov/public/_cache/files/415b9cde-e664-4628-8fb5-ae3951197d03/
22514hearingwitnesstestimonymoore.pdf. But see Climate Change: How Do We Know?,
supra note 5 (attributing modern global-warming trends to human activity); see also B.D.
Santer et al., A Search for Human Influences on the Thermal Structure of the Atmosphere,
382 NATURE 39 (1996); Gabriele C. Hegerl, Detecting Greenhouse-Gas-Induced Climate
Change with an Optimal Fingerprint Method, 9 J. CLIMATE 2281 (1996);
V. Ramaswamy et al., Anthropogenic and Natural Influences in the Evolution of Lower
Stratospheric Cooling, 311 SCIENCE 1138 (2006); B.D. Santer et al., Contributions of
Anthropogenic and Natural Forcing to Recent Tropopause Height Changes, 301 SCIENCE 479
(2003).
Fall, 2017] GEOENGINEERING 185
ice core samples formed over the last 400,000 years.8 These show
that levels of CO2 historically fluctuate between roughly 180 parts
per million (PPM) at the end of an ice age and 280 PPM after a
warming period that follows.9 Temperatures hold a direct
correlation to this fluctuation in CO2 and other greenhouse gasses
with linked trends.10 The earth reached 280 PPM around the turn
of the century, but the global levels have now soared over 400
PPM. Thus, the hypothesis that we are currently being subjected
to the natural warming of the planet is not viable or intellectually
honest. The political argument does not substantially permeate
into the scientific community.11 The earth has been warming
drastically since 1880,12 with the vast majority of warming
13. See T.C. Peterson & M.O. Baringer, State of the Climate in 2008, 90 BULL. AM.
METEOROLOGICAL SOC’Y 8, S12 (2009), http://journals.ametsoc.org/doi/pdf/10.1175/BAMS-90-
8-StateoftheClimate (explaining that while there have been some outlier years, such as the
cool 2008 when the report was written, given the context of the last three decades, the earth
has risen in temperature at an astronomical and dangerous rate).
14. Joe Kunches, We’re Entering a ‘Solar Minimum’ – What it Means, and How It
Influenced 2015, WASH. POST, Dec. 22, 2015, https://www.washingtonpost.com/news/capital-
weather-gang/wp/2015/12/22/were-entering-a-solar-minimum-what-it-means-and-how-it-
influenced-2015/ (explaining the declining solar output that is associated with a solar
minimum, and the implied lower temperatures it would normally bring if not for
anthropogenic climate change); 2009: Second Warmest Year on Record; End of Warmest
Decade, NASA GODDARD INSTITUTE FOR SPACE STUDIES (Jan. 21, 2010),
https://www.giss.nasa.gov/research/news/20100121/ (“In 2009, it was clear that even the
deepest solar minimum in the period of satellite data hasn’t stopped global warming from
continuing.”); J. Hansen et al., Global Surface Temperature Change, 48 REVS. GEOPHYSICS
RG4004, https://pubs.giss.nasa.gov/docs/2010/2010_Hansen_ha00510u.pdf.
15. See John A. Church & Neil J. White, A 20th Century Acceleration in Global
Sea-Level Rise, 33 GEOPHYSICAL RES. LETTERS L01602, 1 (2006), http://onlinelibrary.
wiley.com/doi/10.1029/2005GL024826/epdf.
16. See id.
17. Cheryl Katz, How Long Can Oceans Continue to Absorb Earth’s Excess
Heat?, YALE ENV’T 360 (Mar. 30, 2015), http://e360.yale.edu/features/how_long_can_
oceans_continue_to_absorb_earths_excess_heat.
18. Id. See generally S. Levitus, Global Ocean Heat Content 1955–2008 in Light of
Recently Revealed Instrumentation Problems, 33 GEOPHYSICAL RES. LETTERS L07608 (2009)
http://onlinelibrary.wiley.com/doi/10.1029/2008GL037155/epdf (providing estimates of world
ocean warming).
Fall, 2017] GEOENGINEERING 187
II. GEOENGINEERING
29. Michael D. Shear, Trump Will Withdraw U.S. From Paris Climate Agreement,
N.Y. TIMES, June 1, 2017, https://www.nytimes.com/2017/06/01/climate/trump-paris-
climate-agreement.html.
30. Pam Wright, More Than 200 Mayors, 10 Governors Denounce Trump’s Withdrawal
from the Paris Climate Agreement, THE WEATHER CHANNEL (June 5, 2017, 7:15 AM),
https://weather.com/science/environment/news/mayors-governors-denounce-trump-climate-
accord-decision; Climate Mayors Commit to Adopt, Honor and Uphold Paris Climate
Agreement Goals, CLIMATE MAYORS (June 1, 2017), https://medium.com/@ClimateMayors/
climate-mayors-commit-to-adopt-honor-and-uphold-paris-climate-agreement-goals-
ba566e260097 (with updated signatories as of Oct. 17, 2017).
31. Alan Marshall, Climate Change: The 40 Year Delay Between Cause and Effect,
SKEPTICAL SCI. (Sept. 22, 2010), https://skepticalscience.com/Climate-Change-The-40-Year-
Delay-Between-Cause-and-Effect.html.
32. THE ROYAL SOC’Y, GEOENGINEERING THE CLIMATE: SCIENCE, GOVERNANCE AND
UNCERTAINTY 1 (2009).
33. Id. at 4 (“[T]here is no realistic scenario under which it would be possible for
greenhouse gas emissions to be reduced sufficiently to lead to a peak and subsequent
decline in global temperatures this century . . . .”).
34. See id. at 1.
Fall, 2017] GEOENGINEERING 189
these are very safe and are unlikely to require much in the way of
regulation,52 but are also unlikely to be viable in the near future.53
Looking past land-based systems, ocean-based systems show an
alternative.
62. FISHERIES & AQUACULTURE DEP’T, FOOD & AGRIC. ORG. OF THE U.N. [FAO], THE
STATE OF WORLD FISHERIES AND AQUACULTURE 2006, 3 (2007), (showing in Table 1 that
total marine production in 2005 was estimated to be 103.1 million tonnes).
63. THE ROYAL SOC’Y, supra note 32, at 17–18.
64. Joshua B. Horton, Geoengineering and the Myth of Unilateralism: Pressures and
Prospects for International Cooperation, in CLIMATE CHANGE GEOENGINEERING, supra note
1, 168, 168, 171–74; see generally Conference of the Parties to the Convention on Biological
Diversity [CBD], Decision Adopted by the Conference of the Parties to the Convention on
Biological Diversity at its Tenth Meeting, Biodiversity and Climate Change, U.N. Doc.
UNEP/CBD/COP/DEC/X/33 (Oct. 29, 2010) [hereinafter CBD Decision X/33],
https://www.cbd.int/doc/decisions/cop-10/cop-10-dec-33-en.pdf; PLANKTOS ECOSYSTEMS,
http://www.planktos.com/ (last visited Oct. 31, 2017) (outlining the goals of a private party
created solely to implement ocean fertilization techniques).
65. THE ROYAL SOC’Y, supra note 32, at 19.
66. Id.
67. Id.
68. Id.
69. Id.
70. See id.
71. Id.
194 JOURNAL OF LAND USE [Vol. 33:1
80. THE ROYAL SOC’Y, supra note 32, at 24 n.10 (defining albedo as a value between 0
and 1, with 0 being zero reflectivity and a surface with a value of 1 being perfectly
reflective).
81. See Peter J. Irvine et al., Climatic Effects of Surface Albedo Geoengineering,
116 J. GEOPHYSICAL RES. D24112, 6 (2011), http://onlinelibrary.wiley.com/doi/10.1029/
2011JD016281/epdf.
82. Id. at 2.
83. THE ROYAL SOC’Y, supra note 32, at 25.
84. Kelsi Bracmort & Richard K. Lattanzio, CONG. RESEARCH SERV., R41371,
GEOENGINEERING: GOVERNANCE AND TECHNOLOGY POLICY 17 (2013).
85. Hashem Akbari et al., Global Cooling: Increasing World-Wide Urban Albedos to
Offset CO2, 94 CLIMATIC CHANGE 275, 276 (2009) (verifying estimates with data
from Global Rural-Urban Mapping Project’s Urban Extent Mask); see Ctr. for Int’l Earth
Sci. Info. Network et al., Urban Extents Grid, in GLOBAL RURAL-URBAN MAPPING
PROJECT, VERSION 1 (GRUMPV1) (SOCIOECON. DATA & APPLICATIONS CTR.),
http://sedac.ciesin.columbia.edu/data/set/grump-v1-urban-extents (last visited Nov. 1, 2017).
86. Akbari et al, supra note 85, at 277.
87. Id. at 283.
88. Id.
196 JOURNAL OF LAND USE [Vol. 33:1
89. THE ROYAL SOC’Y, supra note 32, at 25 (calculating the cost of urban albedo to be
roughly $300 billion a year, and “one of the least effective and most expensive methods [of
geoengineering] considered”).
90. Id. at 26.
91. See H. Damon Matthews et al., Radiative Forcing of Climate by Historical Land
Cover Change, 30 GEOPHYSICAL RES. LETTERS 2, 4 (2003), http://onlinelibrary.wiley.com/
doi/10.1029/2002GL016098/pdf (concluding that the natural spread of agriculture by
humanity and the increased albedo that brought has decreased the worldwide temperature
by approximately 0.17°C); see also Irvine, supra note 81, at 2 (“Crop albedo is often higher
than the albedo of natural vegetation, for example, barley, at European latitudes, has a
higher albedo (0.23) than deciduous (0.18) or coniferous (0.16) woodland.”) (referencing
JOHN L. MONTEITH & MIKE H. UNSWORTH, PRINCIPLES OF ENVIRONMENTAL PHYSICS (2d ed.
1990)).
92. See JOHN L. MONTEITH & MIKE H. UNSWORTH, PRINCIPLES OF ENVIRONMENTAL
PHYSICS: PLANTS, ANIMALS, AND THE ATMOSPHERE 337 (4th ed. Elsevier 2013) (showing
that, independent of the solar radiation barley is exposed to, carbon sequestration remains
constant throughout the day, converting a forest to barley, only as an example, would likely
serve to both increase albedo and add a secondary CDR effect).
93. Irvine, supra note 81, at 2.
94. Joy S Singarayer et al., Assessing the Benefits of Crop Albedo Bio-Geoengineering,
2 ENVTL. RES. LETTERS 045110, 2 (2009), http://iopscience.iop.org/article/10.1088/1748-
9326/4/4/045110/pdf (“There also need not be deleterious implications for yield, as increasing
the fraction of incoming photosynthetically active radiation (PAR) reflected back by the
canopy does not necessarily imply a reduction in total photosynthesis and by inference,
productivity.”) (referencing Adolfo Rosati et al., Effects of Kaolin Application on Light
Absorption and Disruption, Radiation Use Efficiency and Photosynthesis of Almond and
Walnut Canopies, 99 ANNALS OF BOTANY 255 (2007)).
Fall, 2017] GEOENGINEERING 197
95. Id. at 8.
96. See generally THE ROYAL SOC’Y, supra note 32, at 23–36 (outlining the various
SRM methods being developed).
97. Id.
98. Id. at 26.
99. CAO Long et al., Geoengineering: Basic Science and Ongoing Research
Efforts in China, 6 ADVANCES IN CLIMATE CHANGE RES. 188, 190 (2015),
http://www.sciencedirect.com/science/article/pii/S1674927815000829.
100. THE ROYAL SOC’Y, supra note 32, at 26.
101. ALVIA GASKILL, SUMMARY OF MEETING WITH U.S. DOE TO DISCUSS
GEOENGINEERING OPTIONS TO PREVENT ABRUPT AND LONG-TERM CLIMATE
CHANGE (June 29, 2004), http://www.homepages.ed.ac.uk/shs/Climatechange/Geo-
politics/Gaskill%20DOE.pdf.
102. Id. (noting that because of the lower humidity in deserts, heat is absorbed much
less by water vapor, acting as a greenhouse gas, than in most other places in the world).
103. THE ROYAL SOC’Y, supra note 32, at 26.
104. GASKILL, supra note 101.
105. Id.
106. Id.; see T.M. Lenton & N.E. Vaughan, The Radiative Forcing Potential of Different
Climate Geoengineering Options, 9 ATMOSPHERIC CHEMISTRY AND PHYSICS 5539 (2009).
107. THE ROYAL SOC’Y, supra note 32, at 26.
198 JOURNAL OF LAND USE [Vol. 33:1
157 (2003) [hereinafter Quadrupling CO2] (examining the potential of reducing solar
luminosity in order to counteract temperature increases from increasing CO2).
120. THE ROYAL SOC’Y, supra note 32, at 29. See also Bala Govindasamy & Ken
Caldeira, Geoengineering Earth’s Radiation Balance to Mitigate CO2-Induced Climate
Change, 27 GEOPHYSICAL RES. LETTERS 2141, 2141 (2000) [hereinafter CO2 Climate
Change] (concluding that doubling CO2 would warm the earth by approximately 1.75 K; the
same model shows that a 1.8% reduction of solar luminosity could cool the earth 1.88 K in
this “doubled CO2 state”); B. Govindasamy et al., Impact of Geoengineering Schemes on the
Terrestrial Biosphere, 29 GEOPHYSICAL RES. LETTERS 22, at 18-2 (2002) [hereinafter
Terrestrial Biosphere] (increasing the estimate from the 2000 levels to a 2.42 K increase
from a “doubled CO2 state,” curiously though, the same 1.8% reduction in luminosity was
modelled to cancel these effects, showing promise for a scalable solution using aerosols).
121. THE ROYAL SOC’Y, supra note 32, at 31.
122. Id.
123. Robock, supra note 114, at 177–81.
124. Id. at 165–66.
125. See Horton, supra note 64, at 171–74 (arguing that states are strongly discouraged
from implementing unilateral deployment postures due to a “web of technical and political
constraints”).
126. David G. Victor, On the Regulation of Geoengineering, 24 OXFORD REV. ECON.
POL’Y 322, 324 (2008) (“Geoengineering may not require any collective international effort to
have an impact on climate. One large nation might justify and fund an effort on its own. A
lone Greenfinger, self-appointed protector of the planet and working with a small
fraction of the Gates bank account, could force a lot of geoengineering on his own.
Bond films of the future might struggle with the dilemma of unilateral planetary
engineering.”). See also Horton, supra note 64, at 171–74; David Appell, The
Ethics of Geoengineering, YALE CLIMATE CONNECTIONS (Dec. 13, 2012),
https://www.yaleclimateconnections.org/2012/12/the-ethics-of-geoengineering/ (“For one, it’s
now clear that deploying SRM by injecting aerosols into the upper atmosphere
(stratosphere) would be quite cheap. . . . the anticipated extra climate forcing over the next
50 years could be offset with existing technology at a cost of less than $8 billion per year.”).
200 JOURNAL OF LAND USE [Vol. 33:1
and Heliospheric Observatory (see Figure 2134) and the Deep Space
Climate Observatory.135 It is theoretically possible to balance the
pressure of solar radiation by pushing a sun-shade-structure away
from the sun and towards us with the gravitational forces of both
the earth and sun in order to keep it balanced and orbiting the sun
in the perfect location.136 The technology to keep such a structure
at an ideal location is not contemporaneously available, but the
scale of construction is not unheard of—the structure would need
to be approximately the size and mass of the Chinese Three Gorges
Dam.137
A. Domestic Regulations
145. Tracy Hester, Remaking the World to Save It: Applying U.S. Environmental Laws
to Climate Engineering Projects, in CLIMATE CHANGE GEOENGINEERING, supra note 1, at
263, 266.
146. Id. at 268 nn.15–16; see INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE,
CLIMATE CHANGE 2007: SYNTHESIS REPORT, 56–58 (2007), https://www.ipcc.ch/pdf/
assessment-report/ar4/syr/ar4_syr_full_report.pdf (explaining the two primary goals of
climate change response, which naturally are mirrored by regulatory concerns and
priorities).
147. See Hester, supra note 145, at 268 (explaining the nature of CDR and SRM
methods).
148. Press Release, House Sci. Space & Tech. Comm. – Democrats, Geoengineering
Research Needed, Members Hear (Nov. 5, 2009), https://democrats-science.house.gov
/news/press-releases/geoengineering-research-needed-members-hear.
149. Hester, supra note 145, at 287.
150. Brett Cherry, Air Pollution, Geoengineering and Climate Change, INST. OF
HAZARD, RISK AND RESILIENCE BLOG (May 29, 2012), http://ihrrblog.org/2012/05/29/air-
pollution-geoengineering-and-climate-change/.
151. Hester, supra note 145, at 287–89.
152. Id. at 287–92.
153. Id.
204 JOURNAL OF LAND USE [Vol. 33:1
There are many other federal laws which may be used to justify
challenges, such as the National Environmental Policy Act and the
Marine Protection, Research and Sanctuaries Act.164 While a wide
berth of federal laws touch peripherally on geoengineering
concepts, nothing speaks directly, and it appears as if these acts
may be the only remedy.
Attempts could be made to challenge geoengineering activity
under federal common law, but following the Supreme Court’s
decision in American Electric Power Company v. Connecticut,165
these challenges may not be possible. The Court ruled that the
passing of the Clean Air Act displaced federal common law and
prevented any suits for greenhouse gas emissions against
corporations under a federal public nuisance claim.166 As
geoengineering becomes more viable and mainstream, it will be
important to see how the courts interpret this case. Can reversal of
global warming ever be considered a nuisance? If so, how much
has this common law been displaced by legislative action? Even if
claims are brought, can damages be attributed to these actions?
Will a certain amount of nuisance be tolerable for the greater
good? These are questions that will need answering as common
law challenges are brought and considered. At this time, the
admittedly thin network of international regulations is more
comprehensive than domestic law.
B. International Regulations
194. See id. at 197–98; Bodle, supra note 59, at 305–06. See generally Parson & Ernst,
supra note 2 (explaining thoroughly the concepts of geoengineering and the general
regulations regarding implementation, both contemporaneously and in the future); Scott,
supra note 171; Jay Michaelson, Geoengineering: A Climate Change Manhattan Project, 17
STAN. ENVTL. L.J. 73 (1998); Adam D.K. Abelkop & Jonathan C. Carlson, Reining in
Phaëthon’s Chariot: Principles for the Governance of Geoengineering, 21 TRANSNAT’L L. &
CONTEMP. PROBS. 763 (2013).
195. Lin, supra note 168, at 197–98; THE ROYAL SOC’Y, supra note 32, at 40.
196. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J.
226, ¶ 29 (July 8).
197. Scott, supra note 171, at 333.
198. Lin, supra note 168, at 197–98 (citing Stockholm Declaration of the United
Nations Conference on the Human Environment, Principle 21, U.N. Doc.
A/CONF.48/14/Rev.1 (June 16, 1972)).
199. Id. at 198.
200. Id.
210 JOURNAL OF LAND USE [Vol. 33:1
A. Defining Geoengineering
This is a fine solution for the purposes of the COP, but once
again, when implemented by a different, hypothetical regulatory
body with more control, this exclusion could create unnecessary
loopholes. This should be removed, but with care.
The definition of solar insolation is overly broad, and relies on
the inclusion of “large-scale,” which some scholars have argued is
not restrictive enough.207 The exclusion of small-scale efforts,
however, is necessary, and this is illuminated by the definition
of solar insolation. There are an incredibly diverse number
of activities that could theoretically reduce solar insolation or
sequester carbon while affecting biodiversity—from installing
solar panels to planting trees, many of these concepts are
entirely innocuous. What necessarily forces this definition within
the realm of reason is the inclusion of either large-scale or
deliberately.
Second, the COP does not address when and how a more
precise definition will be developed. The future of this definition is
addressed within the decision itself,208 but not with any kind
of closure. This is not an issue that directly impacts future
definitions created by the international community. However, it
does show the problem with defining geoengineering in this
manner. The primary goal in creating a legal framework for
geoengineering is to actually authorize a body to define, regulate,
and control its use, and this should be the very first step of
cooperation.
B. Policy Considerations
207. Id.
208. CBD Decision X/33, supra note 64, at 1, 5, 7 (“The Conference of the Parties . . . 9.
Requests the Executive Secretary to: . . . (l) Compile and synthesize available scientific
information, and views and experiences of indigenous and local communities and other
stakeholders, on the possible impacts of geo-engineering techniques on biodiversity and
associated social, economic and cultural considerations, and options on definitions and
understandings of climate-related geo-engineering relevant to the Convention on Biological
Diversity and make it available for consideration at a meeting of the Subsidiary Body on
Scientific, Technical and Technological Advice prior to the eleventh meeting of the
Conference of the Parties . . . .”).
212 JOURNAL OF LAND USE [Vol. 33:1
ensuring that only the safest technologies are used. This goal ends
with a monetary safeguard for when geoengineering ultimately
goes wrong.
220. United Nations Framework Convention on Climate Change, supra note 175, at
art. 15.
221. See Reynolds, supra note 217, at 273.
222. U.S. DELEGATION WHITE PAPER, supra note 218.
223. Paris Agreement art. 9, Dec. 12, 2015, T.I.A.S. NO. 16-1104.
Fall, 2017] GEOENGINEERING 215
V. CONCLUSION
228. See Michaelson, supra note 194, at 77; Michaelson, supra note 1, at 81, 113, 114
(“In 1998, I wrote the first law review article advocating geoengineering as a climate change
mitigation strategy . . . . At the time, geoengineering was both unknown and unpopular – a
seemingly impossible combination, but as soon as anyone heard of it, they disliked it.
Twelve years later, the political economy of geoengineering . . . has shifted . . . .
Geoengineering is, as the New American Foundation dubbed it, ‘a horrifying idea whose
time has come.’ As Scott Barrett said, geoengineering’s “future application seems more
likely than not.’ It is a matter of simple economics: ‘the incentives for countries to
experiment with geoengineering, especially should climate change prove abrupt or
catastrophic, are very strong. It is also because the incentives for countries to reduce their
emissions are weaker.’ . . . ‘In the end, the debate about geoengineering is largely a debate
about what sorts of environmental policies to pursue in an imperfect world. It seems almost
preposterous to buck the trends of holistic systems management and suggest running like
the Sorcerer’s Apprentice from symptom to symptom. It may also seem as though driving
less or cutting fewer trees is simpler than scattering dust particles in the stratosphere. It is
certainly more elegant. But when the Damocles’ sword of massive biotic disruption is
hanging over our heads, we should choose what works.’”).
Fall, 2017] GEOENGINEERING 217